A OR Z? AN ANALYSIS OF THOM V. BARNETT.

• Author: Unruh, Gabrielle

1. INTRODUCTION

   All throughout 2021, South Dakotans anxiously waited for the South Dakota Supreme Court to render its decision in Thom v. Barnett (1) as it concerned the validity of Amendment A. (2) If upheld, recreational marijuana would be legal in South Dakota. (3) Ironically, the validity of Amendment A was largely informed by South Dakota's recent adoption of Amendment Z, which added a single-subject rule and separate vote language to its article concerning constitutional amendments. (4) Therefore, while the legality of marijuana may be a "hot topic," this case note addresses the slightly less hot topic of the single-subject and separate vote rules.

   Part II of this case note addresses the facts and procedure of the case. (5) It relays how what became known as Amendment A made its way onto the ballot in the November 2020 general election through the state's initiative process. (6) It then discusses the initiation of the lawsuit and the circuit court's decision. (7) Finally, it addresses the South Dakota Supreme Court's three opinions. (8)

   Part III discusses the law at issue in the case--the single-subject and separate vote rules. (9) First, the history of article XXIII, section 1 of the South Dakota Constitution is addressed. (10) Then, the court's jurisprudence under this article and the amendments to the article are highlighted, including the most recent amendment. Amendment Z. (11) Next, the history, purpose, and implications of the single-subject rule arc detailed. (12) Lastly, the separate vote rule is defined and distinguished from the single-subject rule. (13)

   Part IV analyzes the court's opinion in Thorn. (14) It suggests the majority should have upheld Amendment A by finding it did not violate the single-subject and separate vote rules. (15) Using the three-part test that the South Dakota Supreme Court has used since the beginning of its judicial review of constitutional amendments, Part IV concludes that Amendment A satisfies the single-subject and separate vote rules. (16)

   The analysis in Part IV then suggests Thorn was the court's opportunity to clarify what article XXIII, section 1 requires. (17) Amendment Z changed, or should have changed, the way the South Dakota Supreme Court reviews constitutional amendments. (18) At the very least, the review of Amendment A was the court's opportunity to create a more determinate doctrine for the state of South Dakota. (19)

2. FACTS & PROCEDURE

   In 2019, former United States Attorney for the District of South Dakota, Brendan V. Johnson, initiated an amendment to the South Dakota Constitution that became known as Amendment A. (20) The proposed amendment consisted of fifteen primary provisions and multiple subsections. (21) The provisions related to the legalization, taxation, penalization, and licensure of recreational marijuana and the regulation of recreational marijuana, medical marijuana, and hemp. (22) As the prime sponsor of the proposed amendment, Johnson submitted a version of Amendment A to the Legislative Research Council in accordance with South Dakota Codified Law, section 12-13-25, in May of 2019. (23) The Legislative Research Council Director's comments were provided to Johnson, the Attorney General, and the Secretary of State, and on August 16, 2019, the Attorney General's statement of Amendment A's title and explanation was given to the Secretary of State. (24) After consideration of the comments, on September 11,

   2019, the sponsors of the amendment submitted a petition to the Secretary of State with the purpose of it being placed on the 2020 general election ballot. (25) On January 6, 2020, it was announced that Amendment A had received the requisite number of signatures and would be placed on the November 2020 general election ballot. (26) That election was held on November 3, 2020, and on November 10,

   2020, the election results were certified. (27) The results revealed that Amendment A had been approved by a majority vote of 54.2%. (28)

   On November 20, 2020, the Sheriff of Pennington County, Kevin Thorn, and the Superintendent of South Dakota Highway Patrol, Colonel Rick Miller, initiated an action, challenging Amendment A. (29) They sought to undermine the validity of the election contest in their individual capacities and filed a declaratory action, challenging the validity of the amendment, in their official capacities. (30) The circuit court consolidated the two actions. (31) The plaintiffs filed motions for summary judgment in both actions on December 23, 2020, and simultaneously, the defendant filed motions for judgments on the pleadings. (32) The circuit court considered the motions at a hearing held on January 27, 2021. (33)

   In the action challenging the validity of the election contest, the plaintiffs asserted Amendment A was placed on the ballot in violation of the constitution as it resulted in a "tainted" election process, arguing the results were not reflective of a "free and fair" election. (34) The Attorney General, on behalf of the Secretary of State, argued the plaintiffs failed to point to any irregularity in the election contest. (35) The circuit court agreed with the Attorney General and granted the motion to dismiss the election contest. (36)

   In the declaratory judgment action, the Attorney General claimed Thorn and Miller lacked standing to sue and, further, that such a challenge had to have been raised prior to the amendment's placement on the ballot. (37) Most importantly, the Attorney General argued that because Amendment A pertained to only one subject, it complied with article XXIII, section 1 's single-subject rule. (38) The plaintiffs argued Amendment A was not an amendment but a revision and, further, that Amendment A violated section 1 's single-subject rule as it related to at least five different subjects. (39) The circuit court granted the plaintiffs' motion for summary judgment in the declaratory action, meaning the amendment would not go into effect. (40)

   In granting summary judgment to the plaintiffs, the circuit court concluded Thorn and Miller both had standing to sue in their official capacities and had timely initiated the action. (41) As to the single-subject violation, the circuit court concluded that the "single scheme" of Amendment A consisted of "being able to possess and use marijuana... at any point from its growth through consumption," including the regulation of marijuana. (42) The circuit court went on to identify "hemp" as an additional subject and identified provisions unrelated to the legalization of marijuana. (43) Lastly, the circuit court concluded Amendment A was a revision rather than an amendment and required a constitutional convention. (44)

   The plaintiffs appealed the dismissal of the election contest, and the defendant appealed the court's granting of the declaratory judgment, challenging Thorn and Miller's standing, the timing of the action, and the found violation of the single-subject rule. (45) The South Dakota Supreme Court affirmed the circuit court in a 4-1 decision. (46)

   On appeal, the South Dakota Supreme Court determined the circuit court had properly dismissed the election contest, finding the alleged violations of article XXIII, sections 1 and 2 did not amount to an irregularity in the voting process. (47) Further, the South Dakota Supreme Court affirmed the existence of standing. (48) The court also affirmed the circuit court's decision that the declaratory judgment action was timely. (49)

   The court's decision ultimately turned on holding that Amendment A violated the single-subject and separate vote rules provided in article XXIII, section 1 of the South Dakota Constitution. (50) Under this section, constitutional amendments may be made either through a citizen initiative or by the legislature's majority vote. (51) However, "no proposed amendment may embrace more than one subject." (52) Further, "if more than one amendment is submitted at the same election," each must be distinguished in such a way that they "can be voted upon separately." (53) This single-subject rule and separate vote language were added to article XXIII, section 1 through the passage of Amendment Z in 2018. (54) The court's first review of this language came in Thorn.- (5) It determined the language simply codified the rationale that the court had used since the beginning of its judicial review of constitutional amendments. (56) To determine whether these requirements were satisfied, the court used what it referred to as a three-part test, which states that "[i]n order to constitute more than one amendmentf], the propositions submitted must relate to more than one subject, and have at least two distinct and separate purposes, [that arc] not dependent upon or connected with each other." (57) Although the court referred to this as a three-part test, it did not analyze its parts as three separate elements. (58) Instead, the court's analysis intertwined the parts of the test. (59)

   In applying this test to Amendment A, the majority first identified its purpose. (60) In doing so, the South Dakota Supreme Court determined Amendment A encompassed three separate and distinct purposes--the legalization and regulation of marijuana for those at least twenty-one years old, a mandate that the legislature pass laws relating to medical marijuana, and a mandate that the legislature pass laws relating to hemp. (61) The court rejected the proposition that all fifteen provisions were connected and related to a single, comprehensive plan. (62) Instead, the court found the fact that the first thirteen provisions related to recreational marijuana to be determinative of the amendment's purpose. (63) It viewed the fourteenth provision as distinct, finding the legislature's mandate to pass laws relating to medical marijuana expanded the amendment beyond what was contained in the first thirteen provisions. (64) Because medical marijuana applied to a select group of individuals and recreational marijuana...